“As Necessary” Confers Discretion: The Eleventh Circuit Upholds FRA’s Two-Person Crew Default and Treats Vacatur as Eliminating a Prior “Policy” for APA Change-in-Position Review

Introduction

In American Short Line and Regional Railroad Association v. Federal Railroad Administration (consolidated with petitions by multiple railroads and trade associations), the U.S. Court of Appeals for the Eleventh Circuit reviewed the Federal Railroad Administration’s 2024 “Crew Size Rule,” a safety regulation generally requiring at least two crewmembers onboard a train unless a railroad can qualify for enumerated exemptions or demonstrate—through notice procedures (for certain smaller railroads) or a more demanding “special approval” petition—that one-person operations would be “as safe or safer” than the two-person baseline.

The petitioners (split into two coalitions—“AAR Petitioners” representing larger railroads and “Short Line Petitioners” representing smaller railroads) challenged the Rule under the Administrative Procedure Act (“APA”), arguing the FRA exceeded statutory authority and acted arbitrarily and capriciously, including by relying on an insufficient record, failing to analyze labor costs, conflicting with a statutory risk-reduction program, and promulgating the rule outside a 12-month timing directive. The Eleventh Circuit denied all petitions. Judge Branch dissented, concluding the Rule was arbitrary and capricious for insufficient explanation (especially given FRA’s 2019 withdrawal of a prior proposal) and for failure to account for labor costs.

Summary of the Opinion

  • Statutory authority: The court held that the FRA’s power under 49 U.S.C. § 20103(a) to issue safety rules “as necessary” is a broad general rulemaking grant and does not impose a stringent evidentiary threshold (e.g., proof that regulation is “essential”).
  • Reasoned decisionmaking / record: The FRA reasonably explained why a two-person default with pathways to one-person operation promotes safety, relying on safety trends, research, the limitations and outages of Positive Train Control (“PTC”), and extensive public comments (including “first-hand accounts”).
  • Change-in-position: The court rejected the premise that FRA had to satisfy heightened “change-in-position” scrutiny because the 2019 Withdrawal Order had been vacated by the Ninth Circuit in Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail, & Transp. Workers v. Fed. R.R. Admin. (SMART-TD I), leaving no “existing policy” to reverse.
  • Costs: The court held that petitioners failed to show the FRA arbitrarily ignored “substantial” labor costs, and it distinguished Michigan v. EPA, emphasizing Congress removed “appropriate” from the FRA’s governing text.
  • Risk-reduction program: No conflict existed between the Crew Size Rule and the Rail Safety Improvement Act’s risk-reduction program, which contemplates overlap with federal safety regulations.
  • Timing: Even if the FRA exceeded the 12-month timing directive in 49 U.S.C. § 20103(b), vacatur is not the remedy absent a specified consequence, under Barnhart v. Peabody Coal Company and related authority.
  • Short-line issues: Several challenges were forfeited for failure to raise them in comments; the court upheld the hazardous materials distinctions and the expanded alerter requirement for one-person operations.

Analysis

Precedents Cited

1) The governing APA framework: deferential review of policy judgments

The court grounded its review in the standard articulated in FCC v. Prometheus Radio Project, emphasizing that courts do not substitute their own policy judgment and instead ask whether the agency “reasonably considered the relevant issues and reasonably explained the decision.” It characterized arbitrary-and-capricious review as “exceedingly deferential,” citing City of North Mia. v. Fed. Aviation Admin. (quoting Miccosukee Tribe of Indians of Fla. v. United States). This framing matters: many petitioner arguments effectively asked the court to require near-empirical certainty about safety improvements, which the court treated as incompatible with the APA’s deference to agency expertise.

2) Interpreting “as necessary” as a broad rulemaking grant, not an evidentiary bar

The court relied heavily on the “reasonably related to the purposes of the enabling legislation” formulation from United States v. Florida, which itself invoked Mourning v. Family Publ'ns Serv., Inc. and earlier authority including U.S. Pipe & Foundry Co. v. Webb. The court also drew support from Thorpe v. Hous. Auth. of City of Durham (via Mourning) to reinforce that broad delegations using “necessary” language typically confer discretion.

In rejecting petitioners’ attempt to treat “necessary” as “essential,” the opinion used textual-contextual tools reflected in Republic of Sudan v. Harrison and Home Depot U.S.A., Inc. v. Jackson: statutory language must be read in context, not in isolation. The court further cited Sierra Club v. Jackson to show that “as necessary” phrasing can signal discretion in whether and how to act.

3) Limits on “empirical data” demands and acceptance of qualitative evidence

The court invoked Citadel Sec. LLC v. SEC (quoting Nasdaq Stock Mkt. LLC v. SEC) to reject the notion that agencies may act only with “gold-standard quantitative data,” and cited FCC v. Prometheus Radio Project for the proposition that the APA imposes “no general obligation” to commission new studies. The court also relied on Miami-Dade County v. EPA (quoting Ethyl Corp. v. EPA) to emphasize that precautionary statutes allow regulation without step-by-step proof of causation, and it cited Stilwell v. Off. of Thrift Supervision (Kavanaugh, J.) for the “levee before the flood” principle.

4) Change-in-position doctrine and the legal effect of vacatur

For change-in-position doctrine, the court anchored its framework in Food & Drug Admin. v. Wages & White Lion Invs., LLC and FCC v. Fox Television Stations, Inc., with the heightened-justification concept from Encino Motorcars, LLC v. Navarro. Critically, the court treated the prior “policy” as nonexistent because the 2019 Withdrawal Order was vacated by the Ninth Circuit in Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail, & Transp. Workers v. Fed. R.R. Admin. (SMART-TD I). It analogized vacatur to the nullification of judicial decisions discussed in United States v. Sigma Int'l, Inc. and cited D.C. Circuit authority Action on Smoking & Health v. C.A.B. for the reinstatement effect of vacatur.

The court also cited Smiley v. Citibank (S.D.), N.A. to stress that, absent an operative prior position, the change-in-position doctrine does not apply. The dissent contested this vacatur-based approach and argued that FRA itself conceded change, but the majority treated the “policy existence” question as a legal predicate that does not turn on an agency’s characterization.

5) Cost consideration and Michigan v. EPA

Petitioners leaned on Michigan v. EPA, but the court distinguished it on statutory text: Michigan emphasized “appropriate and necessary,” whereas the FRA statute now reads “as necessary,” and the court highlighted that Congress removed “appropriate” from the FRA’s original 1970 formulation. The court thus declined to convert Michigan into a general requirement that FRA monetize or treat foregone labor savings as a mandatory “largest cost” category.

6) Statutory deadlines and remedies

On the 12-month timing directive, the court followed D.C. Circuit decisions involving the same parties and similar claims: Transp. Div. of Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R. Admin. (SMART-TD II) and Transp. Div. of Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R. Admin. (SMART-TD III). It treated Barnhart v. Peabody Coal Company as controlling: absent a specified consequence for missing a deadline, courts do not impose vacatur as a sanction. The court also cited McIntosh v. United States to reinforce that time-related directives typically spur prompt action rather than create “jurisdictional” bars.

Legal Reasoning

1) The “as necessary” holding: discretion plus rational relationship to safety

The opinion’s core doctrinal contribution is its interpretation of 49 U.S.C. § 20103(a). Petitioners tried to convert “as necessary” into a demanding proof requirement (“essential” to safety), which—if accepted—would have elevated evidentiary disputes into jurisdictional defects (ultra vires). The court instead treated § 20103(a) as a typical broad delegation: FRA may regulate when, in its judgment and within reason, safety warrants action, and a rule is valid if it is reasonably related to railroad safety.

Importantly, the court separated two questions: (a) whether the Rule is within the FRA’s statutory authority (a legal question), and (b) whether the FRA exercised that authority reasonably (an APA arbitrary-and-capricious question). This avoids collapsing ordinary record-evidence disputes into categorical “no power to regulate” arguments.

2) Evidence and predictive judgment: why the record was enough

The court emphasized that FRA need not prove that one-person crews are statistically less safe to regulate in a precautionary domain. It upheld FRA’s reliance on:

  • Safety trends (increasing human-factor-caused accident rates; longer trains adding complexity).
  • Research synthesis (FRA-sponsored reports about cognitive load, teamwork, and error correction, and the limitations of PTC).
  • PTC uncertainty (outages, malfunctions, learning curve).
  • Public comments and testimony describing safety-critical functions of a second crewmember and operational realities (including emergency response and blocked crossings).

The Rule’s structure reinforced reasonableness: it did not impose an absolute ban on one-person operations; it established a two-person default and created pathways to one-person operations with safety showings (“as safe or safer”), with more stringent scrutiny for more complex/high-risk contexts (e.g., Class I railroads and hazardous materials).

3) The vacatur-driven rejection of change-in-position scrutiny

The court’s most novel administrative-law move is its conclusion that a vacated agency order cannot serve as the “prior policy” that triggers change-in-position doctrine. By treating the Ninth Circuit’s vacatur of the 2019 Withdrawal Order as wiping the slate clean, the court reduced petitioners’ ability to demand heightened justifications premised on “contradictory findings” in the earlier withdrawal.

The opinion nonetheless explained that, even if change-in-position principles applied, FRA offered rational explanations for regulating in 2024: reassessment after the Ninth Circuit’s criticism and consideration of trends and technological uncertainty. But doctrinally, the court’s threshold holding matters: it narrows when litigants can leverage a previously invalidated agency action as an APA “baseline.”

4) Costs: rejecting “foregone savings” as a required missing category

Petitioners’ labor-cost attack depended on the premise that the Rule functionally prevents railroads from adopting one-person operations. The court rejected that as speculative, pointing out the Rule’s special-approval pathway and petitioners’ failure to substantiate that FRA would systematically deny approvals. It also treated Michigan v. EPA as text-specific and underscored that Congress removed “appropriate” from the FRA enabling language.

5) No conflict with risk-reduction programs

Petitioners argued that the Rail Safety Improvement Act’s “risk reduction program” (49 U.S.C. § 20156) displaced FRA’s authority to regulate crew size. The court read § 20156(c) as expressly contemplating that risk-reduction plans will address many topics already covered by federal regulations, with the “other matters” clause indicating only that plans must also cover additional safety topics not covered elsewhere. Thus, risk-reduction planning is complementary, not preclusive.

6) Deadlines: delay does not void rulemaking authority

By applying Barnhart, the court reinforced a remedial principle: if Congress sets a timing directive but does not specify a consequence for missing it, vacatur is not the default judicial sanction. The proper remedy for delay is generally an action to compel agency action unlawfully withheld or unreasonably delayed under 5 U.S.C. § 706(1), not retroactive invalidation of a late-issued rule.

Impact

  • Strengthening FRA’s safety-regulation discretion: The decision treats § 20103(a) as a broad delegation, resisting attempts to convert “as necessary” into an evidentiary gatekeeper. Future challenges may have to focus more on classic APA rationality arguments than on ultra vires theories.
  • Vacatur narrows change-in-position leverage: By holding that a vacated agency action is not an “existing policy,” the opinion limits reliance on prior withdrawn or invalidated orders as anchors for heightened explanation requirements.
  • Validation of qualitative support in safety rulemaking: The court’s acceptance of public comment “first-hand accounts” and qualitative assessments—especially in a precautionary context—may reduce the effectiveness of “you lack statistical proof” objections in transportation safety regulation.
  • Deadline provisions as non-jurisdictional: The reaffirmation of Barnhart in the FRA context signals that missed rulemaking deadlines rarely provide a basis for vacatur absent explicit statutory consequences.
  • Crew-size litigation roadmap: The decision suggests the most plausible future challenges will turn on (a) application denials under the special-approval process, (b) as-applied evidence disputes, or (c) procedural defects in future amendments, rather than facial attacks on authority.

Complex Concepts Simplified

“Arbitrary and capricious” (APA)
A court asks whether the agency considered the important issues and explained itself reasonably; it does not decide whether the court would have made the same policy choice.
General rulemaking authority (“as necessary”)
A broad delegation allowing an agency to regulate within a subject area (here, railroad safety). The court held “as necessary” signals discretion about when to regulate, not a requirement to prove regulation is “essential.”
Change-in-position doctrine
When an agency reverses a prior policy, it must acknowledge the change and provide good reasons; sometimes it must give a more detailed justification if it contradicts earlier factual findings or disrupts reliance interests. The majority held this doctrine did not meaningfully apply because the earlier FRA action had been vacated.
Vacatur
A court order setting aside an agency action. The Eleventh Circuit treated the Ninth Circuit’s vacatur of the 2019 Withdrawal Order as eliminating it as a “policy” baseline.
Special approval vs. notice pathway
Smaller railroads may use one-person crews in certain circumstances by notifying FRA and adopting specified safety rules; other railroads (including those seeking to transport hazardous materials with one-person crews) must petition for FRA approval supported by a detailed risk assessment and public comment process.
Alerter
A device that detects engineer inactivity and triggers alarms, then applies braking if the engineer does not respond—intended to prevent uncontrolled train movement in one-person operations.
Positive Train Control (PTC)
A technology designed to prevent certain collisions and derailments, but which the FRA noted does not perform all conductor functions and can experience outages or malfunctions.

Conclusion

The Eleventh Circuit upheld the FRA’s 2024 Crew Size Rule and, in doing so, articulated a robust view of the FRA’s enabling statute: “as necessary” in 49 U.S.C. § 20103(a) confers regulatory discretion rather than demanding proof that a rule is “essential.” The court also endorsed precautionary safety regulation supported by qualitative evidence and predictive judgment, limited the use of a vacated prior agency action as a baseline for heightened change-in-position scrutiny, rejected a facial labor-cost challenge grounded in speculative foregone savings, found no conflict with statutory risk-reduction programs, and held that missing the 12-month timing directive does not warrant vacatur absent a congressionally specified consequence.

The dissent underscored enduring fault lines in administrative law—what counts as enough evidence to justify prophylactic safety regulation and how rigorously courts should police agency reversals and cost analyses. But the controlling majority opinion positions crew-size regulation—and similarly structured safety rules—on firm doctrinal ground within the Eleventh Circuit’s APA framework.